General Grounds For Refusal (Online Course)

What is covered?

There is an increasing tendency by decision makers in entry clearance and leave to remain applications to place reliance on the general grounds for refusal. Minor offending, a history of overstaying combined with illegal working, minor omissions in application forms or in tax returns are just a few examples of acts triggering intervention under paragraph 320.

Everyone doing immigration casework sometimes faces decisions based on the general grounds for refusal. But the labyrinthine Rules, evolving case law, and ever-changing Home Office guidance, are hard to keep up with.

We deal with practical solutions and innovative arguments at every stage of the process, from planning the application to challenging refusals on administrative or judicial review, and on appeal. We cover:

– Offer guidance on the preparation of applications and reviews where the mandatory grounds of refusal operate;

– Describe the proper approach to paragraph 320 (11) so as to better enable the preparation of applications

Course Extract:

Introduction to the General grounds for refusal

The Immigration Rules at Part 9 specify that an applicant can, or sometimes must, be refused leave if one of the general grounds for refusal applies. An application may meet all the category specific requirements of the rules, but still fall to be refused under the General Grounds. They address various kinds of generic objection to a person being granted leave or entry clearance: particularly bad immigration history and criminal offending, but also practical issues such as inability to establish one’s identity or ability to depart the UK for another destination following a period of stay here.

As some categories of the Rules have been reworked in recent years, it is necessary to identify to which of them the General Grounds still apply. This is not always easy. Generally, they do not apply to applications made in relation to the family migration routes for the Armed Forces and for partners, parents, children and adult dependent relatives generally, or to visitors – because the relevant Appendices, ie Appendices AF, FM and V, have their own ‘suitability’ criteria, subject to some exceptions laid out in rule A320. Some points to note on their application:

Some are mandatory (ie they lead to automatic refusal); others are discretionary (ie the decision maker has to decide whether leave should be granted notwithstanding the difficulty in question)

None of the General Grounds in Part 9 apply to applications made Appendix V (for visitors). However, the ‘Suitability’ criteria in Appendix V (for visitors) are almost identical to the General grounds – Appendix V rewords many of the Rules and so helpfully may shed some light on the meaning of the equivalent General ground

Paragraphs 320 (except subparagraph (3), (10) and (11): ie production of a non-valid or unrecognised passport, and contriving to frustrate the purposes of the Rules) and 322 do not apply to family applications made under Appendix FM or to an application for leave to remain on the grounds of private life under paragraph 276ADE(1) (see paragraph A320)

Nevertheless, the ‘Suitability’ criteria in Appendix FM are similar to the General Grounds, but with some important differences. Importantly, an applicant under Appendix FM will not be subject to the mandatory re-entry ban provided for in paragraph 320(7B) for those with a poor immigration history

Also importantly, paragraph 320(11), addressing those who have contrived to frustrate immigration control in the past, does apply to family applications made under Appendix FM, and is often the basis upon which entry clearance applications, particularly those made under the partner category, are refused, where the applicant has what is considered by the HO to be a very poor immigration history (see further below)

The burden of proof in establishing the existence of a general refusal reason is on the decision maker – JC China [2007] UKAIT 27

Example

Iqbal applies for entry clearance as a visitor. He is concerned that he previously entered the UK and overstayed his visa.

Iqbal should read the Suitability criteria within Appendix V of the Rules, as he is applying in the visitor category; rather than the General refusal reasons under Part 9 of the Rules.

Javed has been refused entry clearance under Rule 320(11) for contriving to frustrate immigration control. He wants to know if the decision is discretionary or mandatory.

It is a discretionary refusal ground: simply because it appears below the heading “should normally be refused” rather than below the heading “is to be refused”.

Kirk is worried about his health record and whether he might be refused because of it. He is applying for entry clearance under Appendix FM as a partner. He wonders whether medical reasons apply or not as a general refusal reason given he is applying on family life grounds.

The general refusal reason on health does not apply, because A320 does not include 320(7) as one of the Rules which applies to Appendix FM; however this does not take him very far, because the Suitability criteria within Appendix FM include S-EC.1.7, permitting refusal where it is “undesirable to grant entry clearance to the applicant for medical reasons”

Stages at which General Refusal may operate

In a category to which they do apply, the General Grounds of Refusal can be applied to any application, from entry clearance to settlement, and to existing leave which can be cancelled or curtailed. The Rules are structured to address decisions in relation to:

Entry clearance and leave to enter (ie applications made before travelling or at the border)

Leave to remain (ie usually extension/variation of leave applications),

The cancellation or curtailment of existing leave when something comes to light after leave has been granted

Indefinite leave to remain

Various specific categories of Points Based System migrant, because certain events during their UK residence are considered to require individualised treatment: for example a Sponsor’s loss of licence

This is their layout:

Rule 320: Refusal of entry clearance or leave to enter the United Kingdom

Rule 321: Refusal of leave to enter in relation to a person in possession of an entry clearance

Rule 321A: Grounds on which leave to enter or remain which is in force is to be cancelled at port or while the holder is outside the United Kingdom

Rule 322: Refusal of leave to remain, variation of leave to enter or remain or curtailment of leave

Rule 323: Grounds on which leave to enter or remain may be curtailed

Rule 323A: Curtailment of leave in relation to a Tier 2 Migrant, a Tier 5 Migrant or a Tier 4 Migrant

The grounds in r320(1) to 320(7D) are mandatory (i.e., as per the heading to the relevant sub-rules, the application “is to be refused”) and they can be summarised thus:

Applications made outside the Rules (320(1));

Subject to human rights and the Refugee Convention, and to exceptional cases an applicant convicted of a criminal offence of more than 12 months, the ban lasting for varying periods depending on the length of sentence (320(2));

Failure to satisfactorily establish identity via a valid national passport or other document (320(3));

Failure to establish admissibility to a destination within the common travel area for which they are travelling through the UK (320(4));

Lack of a visa for nationals who require a visa (320(5));

Personal direction of the Secretary of State on conducive to the public good grounds (320(6));

Making false representations, providing false documents, or failing to disclose information or facts – both in relation to the instant application, and regarding documents advanced to support the application (320(7A));

Overstaying, breaching conditions of leave, being an illegal entrant, or using deception in a past application (320(7B)); unless a certain period of time has now passed (see below where we address the Mandatory Bans)

Failing to comply with a request by an ECO to attend for interview (320(7D)).

Examples

Bari applies for entry clearance to come to the UK as a Tier 4 student. The decision maker identifies a flaw with the passport that he provides supporting his application.

Bari is very likely to receive a mandatory refusal under R320(3), for failing to adequately establish his identity via a valid national passport. This is a mandatory refusal reason.

Ashfar wants to apply for entry clearance to come to the UK as a Tier 2 worker. He has previously been present in the UK as a student some years ago. He overstayed his visa. He comes to you for advice regarding his prospects of being granted a visa.

His case needs to be assessed by reference to R320(7B). Overstaying is a kind of misbehaviour which is treated by varying degrees of severity depending on the circumstances of departure: so it will be necessary to determine whether he made a voluntary or involuntary departure.

Anyiam applies for entry clearance as a sole representative. The ECO considering his application decides that a false document has been provided because the company registration number on his letters of reference does not match up with the details of the sponsor’s organisation found on its website.

Anyiam is likely to be refused on the basis he has made false representations in the present application. This will lead to mandatory refusal.

Note that had the document in question related to an earlier application, rather than the present one, then the refusal of that prior application would have entailed a ten year ban on further applications under R370(7B): indeed he now potentially faces such a ban, given the fate of the present application.

The discretionary refusal reasons (i.e. where the heading within r320 states “should normally be refused”) can be summarised thus:

Failing to provide information on arrival relevant to the grant of leave to enter (320(8))

Outside the United Kingdom, failure to supply information, documents or copy documents, or a medical report (320(8A))

Failing, where claiming to hold indefinite leave, that they truly held such leave, have not been away for more than two years, and received no help from public funds when last leaving the country (320(9))

Producing a passport or travel document from somewhere which is not recognised by the UK as a state or government, or which does not comply with international passport standards (320(10))

Having “previously contrived in a significant way to frustrate the intentions of the Rules” by overstaying, breaching a condition of leave, being an illegal entrant, using deception in an immigration application or in obtaining a supporting document, successfully or not, where there are other aggravating circumstances (320(11))

Failing to establish that they are admissible to their next proposed destination (unless entering for the purpose of settlement) (320(13))

Refusal by a sponsor to provide an undertaking (320(14))

Failing, for a child not dependent on their parents’ own applications to show written consent to their travel from their parents or legal guardians (320(16))

Having been convicted, or having admitted, an offence for which a non-custodial sentence or other out of court disposal is recorded on their criminal record (320(18A))

Where their offending is thought to have caused serious harm or to evinced particular disregard for the law (320(18B))

Exclusion for reasons conducive to the public good due to conduct, character, associations, or other reasons (320(19))

Failing to comply with a requirement relating to the provision of physical data (320(20))

Failing to pay NHS charge(s) exceeding £500 (reduced from £1,000 from 6 April 2016) where a relevant NHS body has notified the Secretary of State of this in accordance with the relevant regulations (320(22))

Failing to pay litigation costs awarded to the Home Office, where there has been a costs order made against the applicant in previous litigation with the Home Office (320(22) (introduced from 6 April 2016). HO guidance is in the Modernised Guidance, Litigation Debt

Whenever discretionary refusal reasons are relied upon, the Home Office has to consider whether to exercise discretion favourably. The question will be whether the case presents compelling factors that amount to an exceptional reason.